The Cudahy Packing Co.

National Labor Relations Board - Board Decisions

Jun 29, 1940

24 N.L.R.B. 1219 (N.L.R.B. 1940)

In the Matter of THE CUDAHY PACKING COMPANY and UNITED PACK-
INGHOUSE WORKERS OF AMERICA, LOCAL No. 85, OF THE PACKING-
HOUSE WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH THE
CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. C-1486.Decided June 09, 1940
Meat Packing Industry-Interference, Restraint, and Coercion: anti-union,
statements made liy supervisory employees ; disparagement of union officials;
disparagement of union activities ; statements indicating that union was ineffec-
tive-Discrimination: lay-off and refusal to reinstate, because of union member-
ship and concerted activity ; charges of, sustained as to one employee ; discharge
because of union membership and activity ; charges of, dismissed as to two
employees-Reinstatement: ordered-Back Pay: awarded.
Mr. Paul S. Kuelthau, for the Board..
Grant, Sh.afroth d Toll, by Mr. Henry W. Toll and' Mr. Ora H.
George, of Denver, Colo., for the -respondent.
Mr. James Porter, of Denver, Colo.,. for the United.
Mr. William Strong, of counsel to the Board.
DECISION
AND -
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Packing-
house Workers, of America, Local No. 85, of the Packinghouse Work-
ers Organizing Committee, affiliated with the Congress of Industrial
Organizations, herein called the United, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for
the Twenty-second Region (Denver, Colorado), issued and duly
served its complaint and notice of hearing, dated October 3, 1939,
against The Cudahy Packing Company, Denver, Colorado, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein. called the Act.
The complaint alleged in substance that the respondent (1) on
24 N. L. R. B., No. 132.
1219 -
•1220 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 10, 1938, transferred William Weidenhamer to a less desirable
position in its plant and on August 26, 1938, discharged him, and has
since continuously refused to reinstate him; on December 20,1938, laid
off Walter Anderson, and has since continuously refused to reinstate
him; on May. 11, 1939, discharged Glenn Hawk, and has since continu-
ously refused to reinstate him; all because they were members of the
United and engaged in other concerted activities and (2) by the fore-
going acts, by urging, persuading, and warning its employees not to
join or assist the United, and by other acts, interfered with, re-
strained, and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act.
On October 13, 1939, the respondent filed with the Regional. Director
a "Motion to Strike," addressed to the allegations in paragraph (7:):
of the complaint, which allegations are'referred to in subsection' (2)
above, a "Motion to Make More Specific," addressed to the entire com-
plaint, and a "Motion to Extend Time Within Which to Answer, and
to Postpone Date of Hearing." On October 14, 1939, the Regional
Director issued an order extending from October 14 to October 16,
1939, at 10 a. in., the respondent's time to file an answer.
Pursuant to the notice, a hearing was held.at Deriver, Colorado, from
October 16 to 24, 1939, before A. Bruce Hunt, the Trial Examiner duly-
designated by the Board. The Board and the respondent were repre-
sented by counsel, and the United by a representative; all participated
in the hearing.
Pursuant to permission previously granted by the Trial Examiner,
.the respondent filed its answer after the hearing had opened on Octo-
ber-16, 1939. The respondent in its answer denies the unfair labor
practices alleged.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded
all parties. Toward the end of the hearing, upon motion of the re
spondent, the Trial Examiner struck certain allegations of the answer
relating to the Twenty-second Regional Office. Counsel for the Board
moved to have stricken from the answer other similar affirmative alle-
gations. Ruling upon this motion was reserved by the Trial Exam-
iner, and he subsequently denied it in his Intermediate Report. Upon
motion of counsel for the Board, the Trial Examiner dismissed, with
prejudice, the complaint as to Glenn Hawk. In the, course of the
hearing, the Trial Examiner also ruled upon other motions and objet-'
tions to the admission of evidence. The Board has reviewed the rul-
ings of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
THE CUDAHY PACKING COMPANY 1221
On November 8, 1939, the respondenffi'led with the Trial Examiner
a brief, wherein, among other things, it-urged on various grounds the
dismissal of the complaint.
On February 1, 1940, in accordance with a stipulation between the
respondent and counsel-for the Board, .the Trial Examiner issued an
order directing correction of certain typographical errors in the trans-
cript of the hearing.
On February 1, 1940, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all the parties. He
found that the respondent had engaged in and was engaging in unfair.
labor practices affecting commerce within the meaning of Section &
(1) and (3) and Section 2 (6) and. (7) of the Act, and recommended
that the respondent cease and desist from its unfair labor practices and
take certain affirmative action remedial of their effect. He also found
that the respondent had not engaged in unfair labor practices with
reference to Glenn Hawk and recommended that the complaint in that
regard be dismissed.
Thereafter, the respondent filed exceptions to the Intermediate Re-
port and the record and moved that the Board state its findings of
fact in accordance with the exceptions and issue a decision and order
dismissing the complaint. Permission to file a brief with the Board
and present oral argument before it was granted -but not availed of by
the parties.
The Board has considered the respondent's exceptions and brief
before the Trial Examiner, and, in so far as the exceptions are incon-
sistent with the findings, conclusions, and order set forth below, finds
them to be without merit. The motion to dismiss the complaint is
denied in so far as it is inconsistent with the findings, conclusions, and
order set forth below.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Cudahy Packing Company, which was incorporated in Maine
in 1915 and is the successor of Armour-Cudahy Packing Company, an
Illinois corporation, is principally engaged in the purchase and,
slaughter of livestock and the processing and marketing of products
therefrom. It maintains and operates numerous plants and branch
houses throughout the United States. 'Its plant in Denver, Colorado,
is the only one involved in this proceeding.
Each year the Denver plant purchases livestock and raw materials
of a value in excess of $2,500,000, at least 10 per cent of which pur-
chases are made at points outside the State of Colorado. In addition,
283025-42-vol. 24--78
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent purchases a substantial quantity of its livestock from
the Denver Union Stockyards. One-third of the livestock sold by the
Denver Union Stockyards is purchased and brought by the latter from
five neighboring States. The finished products of the Denver plant are
valued in excess of $2,500,000 a year. Approximately 20 per cent of
these finished products are sold and shipped to States other than Colo-
rado. The respondent admits that it is engaged in interstate
commerce.
At the time of the hearing the respondent employed approximately
210 persons.
II. THE ORGANIZATION INVOLVED
United Packinghouse Workers of America, Local No. 85, of the
Packinghouse Workers Organizing Committee, is a labor organization
affiliated with the Congress of Industrial Organizations, herein called
the C. I. O. It admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
During the years 1938 and 1939, the United, which had been formed'
in 1937, engaged in extensive organizational activity among employees
of the respondent.
. Louis Blea, an employee in the small-stock department, testified that
in about October 1938 T. W. Foster, superintendent of the plant, on one
occasion asked him what the button was that he wore in his-cap, and
upon receiving. the reply that it was a C. I. O. button, wanted to know
whether Blea was "for" the respondent or the- C. I. O. . Cecil -Binga=
man, employed in the casing department, the chief grievance officer,
and vice president of the United, and Clarence Bjork, an' employee,
testified that in November or December 1938, at grievance meetings be-
tween Foster and employees, Foster stated he could not see why the
employees had to wear union buttons when he could do just as much
for the employees without their wearing these buttons. With refer-
ence to 'these incidents,, Foster testified that on numerous occasions
employees had stated to him that they understood he was opposed to
their wearing union buttons, to which he always replied, and also
stated at grievance meetings, that it did not make any difference to
him "how many buttons they wore, providing the buttons did not
interfere with the performance of their duties or work." On the
entire record, we find that Foster made the remarks attributed to him"
by Bingaman, Bjork and Blea.
In February 1939 a .member of the United complained to its
grievance committee that John Mayers, foreman of the casing de-
THE CUDAHY PACKING COMPANY 1223
partment, had stated that ."he didn't see why he [the employee]
wanted to belong to the C. I. O. when the company union had done so
much for him and the company could do so much more for him."
The grievance committee, including Bingaman, Pete Valko and Hugh
Stackhouse, employees, spoke to Mayers respecting his alleged anti-
United statement. Mayers did not testify.' We. find that Mayers
in substance made the statement attributed to him.
On or about February 9, 1939, according to Bingaman, Foster
stated to him and other employees who were discussing the above
grievance with Mayers : "Are you going to raise hell here just because
the C. I: O. won the "election at Armour [at Denver] ?" The com-
mittee replied in the. negative. Bingaman testified that Foster then
stated that he could not see why the employees were giving their
"hard earned money" to the officials of the United and that he could
not see where the employees "were getting anywhere because he
said he had read a lot of C. I. O. contracts ... and that all that
he read were not nearly as good as the company union contract was."
Valko and Stackhouse in substance corroborated Bingaman. Foster
testified in effect that. on this occasion he informed the employees
that he did not desire discussion regarding the election while they were
at work, and desired that they resume their work. He did not spe-
cifically deny having also made the statements attributed to him.
The Trial Examiner found Foster's testimony unconvincing. We
find that Foster, in substance, made these statements attributed to
him.
At the end of July or early August, the United held a membership-
card inspection outside the gates of the plant, on a public street,
prior to working hours.. Blea testified that Foster, referring to
the members of the United conducting this inspection, stated to him,
"The boys are having a lot of fun, aren't they?" and also. stated, "It
won't be long before they will all be looking for a job." Foster
testified that he stated to Blea "that it was certainly too bad that
conditions of that kind should. be permitted and that if we were not
careful 'all of us would be looking for a. job." In explanation of
this statement, Foster testified, "I meant that it certainly appeared
that morning that the employees were going to be held outside the
gate and we wouldn't .... any of us . . . be working." Upon the
entire record, we find that the purpose and effect of Foster's state-
ment to Blea was to discourage membership in and activity on
behalf of the United. '
1 During the hearing Mayers was convalescing from an operation and unable to attend
the hearing. At the opening of the hearing, the respondent made a motion to have the
testimony of Mayers and another person taken by deposition. Toward the close of the
hearing, the respondent withdrew its motion for permission to take the depositions of
these persons. '
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jess Sharp, another employee, testified that in September 1939,.
Foster stated that the did not see why the employee "had to belong
to a union and pay the grafters and officials the high salaries" in
order to keep up the officers when they "could get just as much not
belonging to a union." Foster did not specifically deny this testi-
mony but testified that he had received many inquiries from the
respondent's employees as to whether they should join the United or
the Packinghouse Workers Union of Denver, or neither, and that
his reply to such inquiries always had been that he could not discuss
the matter and that it was entirely within the employees' judgment.
The Trial Examiner credited Sharp's testimony. We find that
Foster; in substance, made the statement related by Sharp.
We find that the respondent, by the above-described activities
and statements of Foster and Mayers, interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act.
B. Discrimination
1. Walter Anderson
Anderson was employed by the respondent in its beef-kill depart-
ment, in which cattle are slaughtered and dressed, in March 1935, and
laid off on December 20, 1938. Anderson has not been reemployed
since December 20, 1938.
The complaint alleges that the lay-off and the respondent's sub-
sequent refusal to reemploy Anderson were discriminatory. The re-
spondent contends that Anderson was laid off in the ordinary course
of business, and that he was never reemployed because no vacancies
occurred prior to the expiration of his seniority, and for other reasons
set forth below. The Trial Examiner, in his Intermediate Report,
found. that the refusal to reemploy Anderson was discriminatory.
Anderson joined the United in April 1938, and was elected head
union steward of the beef-kill gang in October 1938. After his
election as head steward,. Anderson wore a large button which prom-
inently displayed the word "steward." In December 1938 Anderson
attended a convention of the Packinghouse Workers Organizing Com-
mittee, held in Omaha, Nebraska, as representative of the United.
This fact was generally known at the plant.' Anderson was active on
behalf of the United, soliciting members, collecting dues, and repre-
senting the employees in grievance matters, which were taken up with
the foreman of Anderson's department, D. A. Lewis, and with Foster,
including the matter which we will now discuss.
The number of head of cattle slaughtered and dressed per hour
in the beef-kill department is based upon production schedules pre-
pared by the respondent, and is referred to as the basic speed. There
THE 'CUDAHY PACKING COMPANY 1225-
:are several such schedules,: each requiring different combinations of
employees to perform the necessary tasks. In November. 1938 the
basic speed was 21 head of cattle an hour. The respondent; in order to
minimize certain costs attendant upon the operations of that depart-
ment, endeavored to secure an increase of 10 per cent in the number of
cattle slaughtered per hour over and -above the basic speed. Such
increase is called an "overage." Thus it sought to increase the num-
ber from 21 to 23 an hour. The beef-kill employees' pay is based in
part upon the number of cattle killed and, therefore, their pay would
not have decreased,, and depending on the total number of cattle
slaughtered, might have increased, if they had consented to the over-
age. _ The beef-kill gang,,however, decided to, and did, operate at the
:speed of 21, because the employees thought it was "fast enough" and
because they believed that operation at this speed would entail the
reinstatement of previously laid-off employees.
- Lewis ' asked Anderson why the employees were not killing. more
than 21 head of cattle an hour. This was the first time Lewis had
spoken to Anderson about the killing speed. Anderson replied that
the. employees 'were. not required to work at a greater speed and that
'it "was all they felt like getting out." Lewis then stated "twenty-one
an hour be damned. . I want twenty-three and I'm going to get it"
and "if you can't get it, I'll get somebody else that will." 2
Prior to Anderson's departure that day, Lewis called him to his
desk and stated, "Walter, I don't know what you. have got up your
sleeve, but whatever it is you had better get rid of it." During the
conversation which followed, Anderson informed Lewis again of the
group's decision to remain at the speed of 21. A few days after
this incident, a meeting was held between Foster and the_ grievance
committee of the United at which the problem of the speed .was
discussed and Foster requested the employees to work faster. John
E. Robertson, general manager of the Denver plant, was present at
this conference. He testified that "The bone of contention was that
the beef killing gang wanted to reduce our schedule."
At a subsequent meeting, also held in November 1938, between
the same persons, the issue of the speed was again discussed. Ac-
cording to Anderson, Bingaman, and Stackhouse, Foster stated that
he had a written statement to the effect that Anderson had caused
"all of the trouble in the beef kill department." Valko testified,
2 Lewis testified that Anderson "dropped down or wanted the group to drop down to
the basic speeds and we tried to hold up . . . ' I' did . . . to the overage ." In reply
to the question of whether he spoke to Anderson because the latter was a union steward,
Lewis replied in the negative, adding, "because it was he who was the one that was
holding back the department ," and further testified , "I don't know that he was acting
for the union . I knew he had the steward ' s button on ." Lewis also testified in sub-
stance that the employees were not unwilling to work at speeds greater than the basic
speeds at this time. This is at variance with testimony of other witnesses, especially
Robertson, general manager of the ' plant, which we relate hereinafter.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was corroborated by Bingaman and Stackhouse, that Foster also
stated that, "he [Foster] had him [Anderson] on file in black and
white and while we [Anderson and others] were collecting evidence
against him [Foster] he [Foster] was doing the same against us and
that he would use it." Foster testified that other than to say that
he had "something in black and white that he had received from
an employee in the kill gang," he did not "state what it was or any-
thing about it," and further testified that the written statement re-
ferred to Anderson's sleeping during working hours.. The written
statement was not produced at the hearing. .We find that during
this conversation Foster, in referring to this written statement, stated
that it charged Anderson with having caused trouble in the beef-
kill department, and stated that he was "collecting evidence" against'
Anderson and others in connection, with their "collecting evidence
against him."
At this meeting and .at other meetings Foster stated that Anderson
had caused "all the trouble" in the beef-kill department.
After several discussions relating to the speed, the beef-kill em-
ployees began- operating at the speed of 23 head an hour. Five or
six weeks prior to the hearing herein, the'United succeeded in convinc-
ing the respondent that the employees should operate at the basic
speeds and not be required to produce an overage.
At the time of Anderson's above-mentioned conversation with
Lewis, Anderson was temporarily performing functions other than
those he regularly performed. The rate of pay for the latter was
5 cents more an hour than for the former. The respondent's policy
is to pay employees, temporarily performing tasks other than those
to which they are normally assigned, the higher rate of pay of the
two. A few days after the first meeting with Foster, related above;
Foster stated to Anderson that he was being overpaid 5 cents an
hour and, Anderson testified, stated that since Anderson did not
desire to cooperate with the respondent, there was no reason. why
the respondent should cooperate with him. Foster admitted making:
the deduction but denied making the statement. He did not attempt
to explain his departure from the respondent's policy with respect
to pay for temporary work. On the entire record, we credit Ander-
son and find that Foster made the statement attributed to him..
On December 20, 1938, the respondent in the normal course of
business found it necessary to decrease the number of employees in
the beef-kill department. In accordance with its operating require-
ments, three men, including Anderson, were laid off, while a fourth
was transferred to another department. _ Anderson had the greatest
seniority of these four.' Another employee, Ed Vigil, who originally
8 Anderson testified that he was not qualified to perform the work assigned the transferee.
THE CUDAHY PACKING COMPANY 1227
had been employed by the respondent on the same day as Anderson
and therefore had equal seniority with him, was retained 4 Foster
testified that there exists "a practice in the plant" permitting the
respondent to choose between employees with equal seniority, and
that he personally makes the selections.
On the day Anderson was laid off he stated to Foster that "if I
wasn't back there working within ninety days he would find me
out in front of the gate with a shot-gun." Foster made no reply.
During March 1939 Anderson returned to the plant to request re-
employment or a vacation, to prevent the loss of his seniority. Foster
was not at the plant, and Anderson spoke to C. J. Kelly, assistant
to Foster. After some conversation, Kelly asked whether Anderson
desired to leave a message for Foster, to which Anderson replied,-
"Tell Foster I didn't bring my shotgun, but I am down here to see
about my vacation." Kelly reported this to Foster.
After December 20, 1938, the respondent reemployed other laid-
off employees who had less seniority than Anderson and, also hired
new employees. Subsequent to that date also, both he and the United
on a number of occasions requested the respondent to "reemploy him.
When these requests were made by the United, Foster declined to
reemploy Anderson, referring to him on different occasions, in sub-
stance, as. a "trouble 'maker," and as the person who had "caused all
the trouble" in the beef-kill department, and once stating that he
would not reemploy Anderson in the hide cellar, in which there was
then a vacancy, because, among other reasons, Anderson had "caused
all of. the trouble up on the killing floor and I don't want him in the
hide cellar causing trouble down there."
Bingaman testified that the only "trouble in the beef kill was
the grievance that was handled." The respondent did not explain
at the hearing the meaning it intended to convey by the terms
"trouble" and "trouble maker." 'In its exceptions to the Intermediate
Report the respondent excepts to the Trial Examiner's finding that
4 In its brief the respondent states that Vigil performed an entirely different type of
work from that done by Anderson . At the time of Anderson ' s lay-off he was "skinning
legs" and Vigil was "scribing" and "splitting chucks. " The scribing drew lower pay
and the splitting of chucks drew higher pay than Anderson 's work. Foster testified
that Anderson was not doing the same type of work as Vigil . He also testified that
the work of neither of the two men was more skilled than the other ' s, the chief dif-
ference being in the use. of a knife by Anderson and the use of a saw and a cleaver by
Vigil. ' Upon a reduction of personnel in the beef-kill department , the remaining em-
ployees are required to perform additional tasks. There is no indication that Anderson
could not perform the tasks assigned to Vigil. At the time of the incident dealing with
the 5 cents additional pay, related above, Anderson was "sawing briskets and hotchs,"
an operation involving the use of a saw. This alleged difference in tasks and in apti-
tude was not advanced by the respondent at any of the meetings with the United at
which Anderson' s reinstatement was requested . On the basis of Foster ' s statements
respecting Anderson and the entire record , we find that the alleged difference did not
motivate the respondent in its selection of Anderson for the lay -off or in Its subse-
quent refusal to reemploy him.
' 1228 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i
"the only `trouble' on. the beef gang in which Anderson participated
was his handling of grievances . ." 6 claiming that the evidence
shows that "the trouble" was Anderson's inefficiency, unwillingness
to cooperate with the "rate of kill which the others maintained,"
and complaints to this. effect made by Anderson's fellow workers.
We do not believe that Foster would have referred to Anderson
as a "trouble maker" ,and as the person who "had caused all. the
trouble" if he had been merely speaking of his inefficiency and inactiv-
ity. Since the' respondent specifically objected to the concerted ac-
-tivity relating to-the killing speed, we find that by its use of the terms
"trouble" and "trouble maker" the respondent referred to such con-
certed activities. We also find that Anderson acted in the speed dis-
pute in his capacity of steward of the United, and that his action
constituted a part of the concerted activity of the beef-kill gang.
In response to the Trial Examiner's request at the hearing that the
respondent state its position respecting Anderson with, greater par-
ticularity than that stated in its answer, the respondent's counsel
stated that Anderson's employment terminated on that day in the
normal course of business and strictly in accordance with seniority
ratings, and that after that day there was no occasion to reemploy
him prior to the expiration of his seniority,6 and that "there was no
discrimination of any character exercised in connection with"
Anderson.
The respondent'claimed at the hearing that Anderson was ineffi-
cient, slept during working hours, and threatened Jonas. The re-
spondent does not state clearly whether these matters are supposed to
have prompted the respondent to select Anderson for lay-off in pref-
-erence to Vigil, or were merely considered in deciding, after his senior-
ity had expired, whether he should be reemployed.
Lewis, in reply to the question by the respondent's counsel; "Was
Walt Anderson slower than the rest of the men on that [the beef kill]
gang?" stated, "Yes." Lewis also testified that in March or April.
1938, which. was about 8 months prior to Andersons'.lay-off, he had re-
ceived "complaints" from Sherrill and Knipple, employees, that "they.
were getting tired" of holding up Anderson's end of the work and
that they refused to do his work "while he laid down." In compar-
ing Anderson with another employee, Arthurs, who had less seniority.
than Anderson but was reemployed in preference- to him (after their
The respondent does not take exception to the balance of this finding reading: "and
his refusal to consent to the proposed increase in the rate of kill." It contended at the
'hearing that such refusal was not part of concerted activity by employees, but was made
by Anderson alone.
6 There is a dispute as to the length of time an employee retains his seniority after
lay-off , the respondent claiming that the period is 60 days and the United stating that
it is 00 days . In view of our determination below, this issue need not be resolved.
THE CUDAHY PACKING COMPANY 1229
seniority had expired), Lewis, on cross-examination, stated that Ar-
thurs "takes more interest in his work."
Q. Didn't Anderson do his work all right?
A. He did his work all right.
Q. What do you mean, "he takes more interest in his work ?"
A. He just takes more interest in his work. He doesn't go
fooling around at something else. [Italic, supplied.]
The respondent does not claim that Anderson was "fooling "around"
on company time, nor does it clarify what is meant by."fooling
around."
Sherrill testified at the hearing, but was not asked to address him-
self to Lewis' contention. However, in testifying regarding the speed
incident related above, Sherrill stated that Anderson was doing his
best and had to work "right in with the gang." Knipple did not.
testify. Anderson testified that his work was never criticized except
in the above speed incident, and also that he had received a compli-
ment from Foreman Harry Hauptman of the hide cellar on his work
as shown by the skins. Hauptman did not testify.
On the basis of all the testimony we have set forth above, we find
that Anderson was not derelict in his duties and that the respondent
was not motivated by his alleged dereliction either in laying him off
on December 20, 1938, or in not reemploying him thereafter.
Lewis .testified that he had "caught" Anderson asleep during work-
ing hours 10 or 15 times ; that Anderson slept in a.standing position,,
leaning against a post in the room in which he worked, in full view
of everyone; that he had not threatened to discharge Anderson, merely,
instructing him to do his sleeping at home and cautioning him about
possibly injuring himself with his knife if he fell while asleep; that
Sherrill had informed him in, March or April 1938 that Anderson was
thus sleeping ; and that he sent a note to Foster to this effect. Foster
testified that he had been informed several times that Anderson had
fallen asleep. He testified in part, "The foreman, Mr. Lewis, D. A.
Lewis, sent a note to the effect that Anderson for quite some time had
been standing up against the post while in a working capacity and
found asleep; and I was afraid that sometime he might fall and hurt
himself with a knife in his hand." The note was not produced at the
hearing.
At the hearing, Foster, in response to a question by the Trial Ex-
aminer as to whether he had testified that Anderson had fallen asleep,
standing, with a knife in his hand, replied, "He generally carries a
knife in his hand. He is a_ butcher and always has it in his pouch
regardless of whether it is in his hand, and its would be a dangerous
practice." Upon further questioning, Foster testified, "I didn't see
1230 DECISIONS .OF. NATIONAL LABOR RELATIONS BOARD
the gentleman sleeping myself but I knew he was a knife man and he
either had it in his hand or pouch," and also stated that he never
spoke to Anderson about the matter. When asked again later whether
he ever said anything to Anderson about this, Foster replied, "It would
have been doubtful on .that question because the reason probably or
perhaps he was sleeping against the post, was prior to. my_ arrival in
Denver."
Anderson denied that he is able to, or did, sleep standing up or that
he slept at all during working hours. He testified that on December
19, 1938, after he had arrived home from the convention mentioned
above, he was drowsy and slept for a short period during his lunch
hour, and that at the end of the day he stated to Lewis that had he
known.he was going to work so long that day, he would not have come.
To this, according to Anderson, Lewis replied, "Well, when you are
sleepy, it is better not to come." There is nothing in the record to
indicate that Anderson's alleged sleeping was advanced by the re-
spondent at' any of the meetings referred to above as a reason for his
lay-off or for not reemploying him thereafter. Foster testified that
in a conference with Board representatives prior to the hearing herein
he stated, "Anderson would have to take his turn on hiring as a new
man inasmuch as he didn't have seniority" and promised to give
Anderson "consideration." He apparently did not even then advance
the reasons now offered as a bar to Anderson's reemployment. On the
basis of the entire record, we do not believe Lewis. We find that
Foster did not lay off or refuse to reemploy Anderson. because of his
alleged sleeping at the plant.
The respondent contends that Anderson threatened Foster. As we
have related, on December .20, 1938, Anderson, in his conversation
with Foster, made a reference to returning with a shotgun unless he
was reemployed before his seniority expired. Anderson testified that
his statement was a "joking matter." Foster, when asked at the hear-
ing whether he thought the statement was made as a joke, testified,
"`Well, it wasn't handled in a joking. way, and I felt that it was cer-
tainly something . . . I thought certainly there was something be-
hind it or it wouldn't have been said," and testified that he construed
the statement as a threat. No precautions were taken by him to keep
out of Anderson's way because "I thought I could protect myself."
Kelly, who was present at this conversation, when asked at the hearing
whether Anderson's remark was made jocularly, replied, "Well, I
don't know. It was a statement of Anderson's." Kelly did not recall
whether Foster laughed at'the remark. - On cross-examination, in re-
sponse to the question "Was Mr. Foster terrified at that time?" Kelly
replied, "Well, I. don't think so."
THE CUDAHY PACKING COMPANY 1231
In March 1938, after Anderson had. spoken ,to Kelly, Kelly re-
peated to Foster the statement made by. Anderson that. he had not
brought his shotgun and was back for a vacation. Foster, according
to .Kelly, "was visibly perturbed. His demeanor was changed from
his usual course and he didn't seem to like the remark." On cross-
examination , Kelly testified as follows :
Q. Well, now when you saw Anderson in March and he said
that he hadn't brought his shotgun, to tell Foster that, did Mr.
Foster seem vastly relieved. that Anderson hadn't brought it?
A. On the contrary, the remark seemed to upset him.
Q. What remark?
A. When I relayed the message about the shotgun.
Q. Did he get afraid?
A. Well, his attitude changed.
Q.. What do you mean changed? Did he become angry?
A. Well, it is hard to define a man's emotions.
Q. What did he do? Did he jump up?
A. No, his tone of voice changed. Instead, of the usual tone
that he usually gives the orders in, it became much more sterner
when he told me what to go back and tell him.
Q. You think that was because Anderson had asked for a
vacation, was it not?
A. Well, as long as I am thinking, I think it was because
of the way he asked for the vacation.
Again, this purported "threat" was not mentioned at conferences
with the United or to the Board representatives prior to the hearing.
We find that the remark as made by Anderson in December, did
not constitute a threat and was not regarded as such by Foster, that
the remark made in March did not constitute a threat and was not
and could not have been regarded as a threat by Foster. The Trial
Examiner states in his Intermediate Report that he does not believe
that Anderson was denied reinstatement because he made these
remarks. We concur in this belief and so find.
The Trial Examiner in his Intermediate Report stated that. he
"concludes and finds that the respondent refused to reinstate Ander-.
son: because of his union membership and activity." We concur in
this finding. We also find that in selecting Anderson for lay-off :7
The Trial Examiner states in his Intermediate Report that it "is not asserted by the
Board that Anderson was discriminated against" in the lay -off, that "the Board 's posi-
tion is that there subsequently was a discriminatory refusal to reinstate Anderson," and
further, that "the respondent was warranted , under its employment policy" in retaining
Vigil in preference to Anderson . The complaint alleges .that both the lay -off and the
subsequent refusal to reemploy Anderson were discriminatory. While the respondent
was privileged to select Anderson in preference to. Vigil, it was not permitted, under
the Act, to select Anderson because of his union membership or concerted activities.
We find that the selection was made on this basis.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on December 20, 1938, the respondent was motivated primarily by
a desire to rid itself of an employee who, the respondent felt, as
the chief representative of the United in his department, was the
leader in its employees' concerted activities, especially with reference
to the killing-speed grievance.
We find that the respondent, by laying off Anderson on December
20, 1938, and thereafter refusing to reinstate him, discriminated in
regard to his hire and tenure of employment, thereby discouraging
membership in the United, and interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section
7 of theAct.
Between December 20, 1938, and the date of the hearing Anderson
earned approximately $375. He desires reinstatement.
2. William Weidenhamer
William Weidenhamer was first employed by the ' respondent in
1933. - In November 1937 he was transferred from the edible render-
ing department to the lard department. On or about August 9,
1938, Weidenhamer was transferred from the lard department to the
sausage department, and was discharged on August 26, 1938. The
complaint alleges that the ' August transfer and the discharge of
Weidenhamer were 'discriminatory. The respondent admits the
transfer and discharge, but denies that, they were discriminatory,
contending that Weidenhamer was discharged because he was an
unsatisfactory employee. The Trial Examiner found that. by; its
discharge of Weidenhamer the respondent discriminated against:
him in violation of the Act.
Weidenhamer became a member of the United in July 1937, and
by. November 1937 had been elected to the offices of steward and
vice president of the United.
In November 1937 William Weidenhamer's brother, Glenn Weiden-
hamer, was also employed with him in the edible rendering depart-
ment.. Carney Pace, foreman of that department, acting pursuant to
,an alleged company rule prohibiting brothers from working together
in the same department, transferred William to the, lard depart-
ment.$ At the time of Weidenhamer's transfer Pace promised him
that if Glenn ever left the edible rendering department and there
was an opening. available for which no other person heldi seniority,
and if "no other condition arose," William would be retransferred.
Six or eight months prior to his discharge, Weidenhamer reported
for work one day in place of his brother. Glenn. The respondent
The record indicates that the rule relating to brothers , if it existed , was not- uni
formly enforced throughout the plant and that its enforcement was generally left to the
discretion of the foreman.
THE • CUDAHY PACKING COMPANY 1233
does. not claim that such action was improper. In recording the time
worked, Weidenhamer did so on his brother's card since his own
card was not in the rack. This action was considered by the re=
spondent as a violation of a rule prohibiting an employee from
recording the time he worked on another employee's card.
Weidenhamer's ditties in the lard department included the cooling
off of a shortening compound after it had been deodorized in a
deodorizing machine, watching over the machine to insure. that. it
operated properly, and the transfer of this compound through a
filter press into a roll kettle and into a tank. This job is considered
,by the respondent as involving special responsibility, for which
Additional compensation is paid.
In about July 1938, the respondent contends, Weidenhamer per-
mitted the kettle then being filled with the compound to overflow,
causing a spill of several hundred pounds of the compound, which
resulted in a financial loss to the respondent. Pace and Jacob Rose,
an assistant, both testified that shortly. prior to the spill they had
both warned Weidenhamer that the kettle was filling rapidly, and
cautioned him not to permit it to overflow. Weidenhamer could
not recall any overflow occurring at about the time claimed by the
respondent, but did recall one about a month previous to that time.
He denied that he ever, permitted the kettle to overflow; that on the
.occasion of the spill, which he recalled, it was his duty to pump
.the compound into- the kettle, stating that this was Rose's duty
,while he, Weidenhamer was working at other tasks; and that he
.had been told that the kettle was almost full. Weidenhamer testi-
fied that on the occasions when he was performing other tasks, "Jake
.Rose or any other man that worked in the lard room did the
.pumping."
Rose denied that-be was transferring the compound on the day
,in question, stating it was Weidenhamer's duty. Pace testified that
he "was sure" that Rose had nothing to do with the overflow, and
corroborated Rose in his testimony that Weidenhamer had the duty
of pumping the compound that morning. It is not necessary to
determine who was assigned to this task on the day in question.
.It is sufficient to find, and we so find, that the respondent's super-
visory employees, Pace and Rose, both considered that Weidenhamer
vvas responsible for the transfer of the compound, and therefore
responsible for its overflow and the consequent financial loss.
Several weeks later water' accumulated in the deodorizer while
it was under Weidenhamer's care, and, in completing the process,
he permitted water to pass from the deodorizer to the press. The
respondent_contends that Weidenhamer should have' ascertained the
presence of water in. the deodorizer and should not have permitted
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it to flow into the press. Weidenhamer denies that he was at fault
in this mishap. On the day following this event, August 9, 1938,
Weidenhamer was informed that he was to be transferred to a
vacancy in the sausage department, pending the investigation by
T.. F. Boughan, who was at that time superintendent of the plant,
of. whether Weidenhamer was at fault in the accident. Weidenhamer
testified that prior to his transfer he was informed that he "wasn't
efficient enough on the job and they couldn't allow that to happen.
They said they, would have to get somebody else to do the work."
He testified further that he. was informed that "they would let me
know their decision." Weidenhamer claims that when informed 'of
this transfer, he requested Pace to retransfer him to the edible ren-
dering department to which Pace replied that he had "no authority
on that." Pace denied that Weidenhamer requested transfer to the
edible rendering department but stated that at a later date he re.-
quested retransfer from the sausage department to the lard department.
Regardless of the actual request made by Weidenhamer, on August
9 or 10, 1938, he was placed in the sausage department.
On August 26, 1938, William Faultermier, foreman of the sausage
department, informed Weidenhamer, who had the least seniority. in
that department, that he was being laid off.
The respondent contends that it did not simply lay off Weiden-
hamer on this date but discharged him, because it had reached'the
conclusion that he'had been at fault in the deodorizer mishap.9 The
respondent states that in reaching its. decision' to discharge Weiden-
hamer, it also took into consideration his violation of the time-record-
ing rule and the previous spill, both related above.
Although we entertain some doubt as to the bona fides of the dis-
charge, in view of the two accidents we do not find that the August
9 transfer and the August 26 discharge of Weidenhamer were dis-
criminatory within the meaning of Section 8 (3) of the Act. We
shall dismiss the complaint as to Weidenhamer.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
9 The. Trial Examiner states in his Intermediate Report that he is unable to determine
whether Weidenhamer should have ascertained the presence of water in the deodorizer.
THE 'CUDAHY PACKING COMPANY 1235
V. THE REMEDY '
Having found that the respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section
7 of the Act, we shall order the respondent to cease and desist from
such unfair labor practices.
Having found also that the respondent, by laying off Anderson
and thereafter refusing to reemploy him, discriminated in regard
to his hire and tenure of employment, we shall order the respondent
to reinstate Anderson to his former or a substantially equivalent
position, without prejudice to the seniority and other rights and
privileges which he held on Deceiber 20, 1938. We shall also direct
the respondent to make Anderson whole for any losses of pay he
may have suffered by reason of the discrimination against him by
payment to him of a sum of money equal to that which he would
.normally have earned as wages from December 20,.1938, to the date:
of -the offer of reinstatement, less his net earnings,10 if any, during
said period.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Packinghouse Workers of America, Local No. 85, of
the Packinghouse Workers Organizing Committee, affiliated with the
Congress of Industrial Organizations, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure and terms
and conditions of employment of Walter Anderson, thereby dis-
couraging membership in the United, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
10 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his
unlawful discharge and the consequent necessity of his seeking employment elsewhere.
"See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B.- 440.
Monies received for work performed upon Federal , State, county, municipal , or other
work- relief projects, are not considered as earnings , but as provided below in the Order,
shall be deducted from the sum due the employee, and the amount thereof shall be paid
over to the appropriate fiscal agency of the Federal,' State, county ; municipal , or other
governments which supplied the funds for said work-relief projects . Matter of Republic
Steel Corp. and Steel Workers Organizing Committee, 9 N. L. R . B. 219, mod . and enf'd.
107 F. (2d) 472 (C. C. A. 3), cert. granted, May 20, 1940.
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act with regard to William
Weidenhanier and Glenn Hawk.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, The Cudahy Packing Company, Denver,. Colorado, and
its officers, agents, successors, and. assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Packinghouse Workers of"
America, Local No. 85, of the Packinghouse Workers Organizing
Committee, affiliated with the Congress of Industrial Organizations,
or any other labor organization of its employees, by discharging,
laying off, or refusing to reinstate any of its employees or in any
other manner discriminating in regard to the hire or tenure of
employment or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join or assist labor organizations, to bargain collectively
,through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the National
Labor Relations Act.
• 2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Walter Anderson immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority and other rights and privileges ;
(b) Make whole Walter Anderson for any 'loss of pay he may have
suffered by reason of The respondent's discrimination) in regard to
his hire and tenure of employment by payment to him of a sum of
money equal to that which he would normally have earned as wages
from the date of the discrimination to the date of offer of reinstate-
ment,, less his net earnings," if any, during said period, had the
respondent not discriminated in regard to his hire and tenure of em'-
ployment; provided that the respondent shall deduct from the back
pay due him monies earned by him for work performed upon Fed-
eral, State, county, municipal, or other work-relief projects, during
11 See footnote 10, supra.
THE 'CUDAHY PACKING COMPANY 1237
the period for which back pay is due him under this Order and shall
pay any such amount deducted to the appropriate fiscal agency of
the government financing such W6rk-relief project;
(c) Post immediately, and maintain for, a period of at least sixty
(CO) consecutive days from the date of posting, in conspicuous places
in each department of the respondent's plant, notices stating (1) that
the respondent will not engage in. the conduct from which it is or-
dered to cease and desist in paragraphs 1 (a) and (b) of this Order;
.(2) that the respondent will take the affirmative •action set forth in
paragraphs 2 (a) and (b) of this,Order; and (3) that the respond-
ent's employees are free to become or remain members of United
Packinghouse Workers of America, Local No. 85, and that the re-
spondent will not discriminate against any employee because of
membership or activity in that organization;
(d) Notify the Regional Director for the Twenty-second Region
in writing within ten (10) days from the date of this Order what
steps the respondent has taken to comply herewith.
AND IT is' FURTHER ORDERED that the. complaint, in so far as it
alleges that the respondent discriminated against 'William Weiden-
hamer and Glenn Hawk, be and it hereby is, dismissed.
DIR. EDWIN S. SMITH took no part in the consideration of the above
Decision and Order.
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